As we consider the John Roberts Supreme Court nomination, I have pointed out that he is a member of the Federalist Society. See my Law and Courts category for more about the Roberts nomination.

Here’s one of the reasons why I am critical of the Federalist Society, and the biggest single reason why I rejected joining the Society when I was in law school:

Federalists (and their supportive right wing spinwits) like to talk about interpreting the Constitution based on “Original Intent” and they denigrate other jurists as being followers of the concept of “the living constitution”. They insult those other jurists as using the concept of the living constitution to justify legislating from the bench.

But it seems like the reality is this: The Federalists use the buzzword called “Original Intent” to justify their philosophy of using the courts to push their “return to traditional values” Christian Right agenda. I don’t accept the agenda, or their convenient “original intent” rationale.

(The concept of legislating from the bench is worther of textbooks of discussion all by itself)

The DailyKos article below contains a reasonably detailed discussion of the semantic and practical differences, if any, between the concepts of “Original Intent” and “Living Constitution”.

I’m going to present a short outline of some of the considerations in Constitutional Interpretation to give you a taste of just how philosophical and semantic the arguments are, and show you that the labels “Original Intent” and “Living Constitution” have no real meaning.

Let’s take a quick, surface-scratchy look at the flag-burning controversy. Assume some prosecutor decided to send a message to some othersie-peaceful anti-war protester by arresting him for flag-burning. The protester argues that his first amendment right of free speech has been violated. The government argues that flag-burning is a special, unenumerated exception to the free speech doctrine (or else is just plain “conduct” and not “Speech”).

Which side is being “Conservative”? Which side is asking the Court to “Legislate from the Bench”? Which side is using “Original Intent”? Which side is using “Living Constitution”?

• The Constituion is meant to be a bedrock document for the ages, laying down the basic ground rules to govern the relationship of the States and the Federal Government and the People, over time, despite changes in the society and world at large
• When new questions and issues arise, due to a changing society or world events, we see that the bedrock Constitution does not mention those new events or issues (because the framers were not clairvoyent).
• Jurists must determine which general provisions among our bedrock principles are broad enough to “cover” the new issue or event. Take the not-so-silly example of flag-burning. Well, the Constitution does not “expressly permit” flag burning, so is it ok to prosecute the offender? Do we ONLY HAVE freedoms specifically mentioned in the Constitution? If you say “yes” then what about the NINTH Amendment, giving the people all rights not specifically mentioned in the Constitution? See my article Demistifying the Ninth Amendment.
• Jurists must also consider other provisions of the Constitution that have nothing to do directly with the exact issue at hand, but touch on it tangentially. For example, the Constitution provides the Government power to promote the general welfare and protect us. So, should the Court ban flag burning, even though it is peaceful political protest, because the govnerment’s right to protect us from fire trumps our right to peaceful political protest? In other words, the Court will balance the individual rights with the duties of government.

I’ll stop this discussion now. I could go on and on and on, example after example, to show that the Courts must balance things in Constitutional Law. Whickever side looses, they’ll bitch and moan and accuse the other side of activism or legislating from the bench.

Read the book “The Brethren” by Bob Woodward if you’d like an indepth understanding of how the Supreme Court works and why the Court felt it necessary in the sixties and seventies to “legislate” on a few items of contentious Consitutional law.

Daily Kos: On Constitutional Interpretation: Originalism v. A Living Constitution?
With hearings on a Supreme Court nomination upcoming, I believe it will be useful to discuss the major dispute that is said to divide the two major schools of Constitutional interpretation, Originalists and Living Constitution proponents [. . .] I reject the idea that proponents of a Living Constitution are not originalists, in the sense that the idea of a Living Constitution is to promote original Constitutional purpose to current circumstances . . .

[. . .]

a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented. I believe that the proper function of Constitutional interpretation does not entail reading the Constitution as one reads a statute - it requires more than a formalized reading of the text and search for specific findings of the original understanding of the specific text in question and the applicability to the case at hand. It requires a unifying approach, one that seeks to read the Constitution as a whole, harmonizing the component parts of the Constitution, the empowering provisions, the limiting provisions, the individual rights created and preserved. It requires understanding the purpose of the creation of a third coequal branch, the judicial branch, with the attendant common law judicial powers and restraints.